FEDERAL COURT OF AUSTRALIA

P38/2003 v Refugee Review Tribunal [2004] FCA 1077

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – breaches of procedural fairness – alleged failure to consider favourable country information before delegate – non transmission to Tribunal of country information considered by delegate – alleged misleading letter to applicant – alleged consideration of adverse information – negative inference from document tendered by applicant without notice to applicant – failure by Secretary of Department to comply with statutory duty to transmit all relevant documents to Tribunal – no jurisdictional error disclosed – application dismissed

Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth) s 39B

Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited

P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 cited

Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 cited

S487 of 2002 v Minister for Immigration & Multicultural & Indigenous  Affairs  [2004] FCAFC 125 cited

APPLICANT P38/2003 v REFUGEE REVIEW TRIBUNAL, SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and COMMONWEALTH OF AUSTRALIA

W161 OF 2003

FRENCH J

18 AUGUST 2004

PERTH

On Remittal from the High Court of Australia

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the second and third respondents’ costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On Remittal from the High Court of Australia

REASONS FOR JUDGMENT

Introduction

1                     The applicant, who is a citizen of Colombia, seeks to set aside a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming the refusal by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, to grant him a protection visa.  He claimed the visa on the basis of fear of persecution by guerrilla groups in Colombia.  He had challenged the decision of the Tribunal under the judicial review provisions of the Migration Act 1958 (Cth) as they stood prior to 2001, but that challenge was dismissed by Einfeld J on 27 January 1999.  Subsequently, he commenced proceedings in the High Court as part of a class action and his application in that Court was remitted to this Court.  In substance he complains of breaches of procedural fairness by the Tribunal in the hearing and determination of his application.

2                     For the reasons that follow, none of the claimed breaches is made out and the application is dismissed with costs.

Arrival in Australia and Application for a Protection Visa

3                     The applicant, who is a citizen of Colombia, born on 7 September 1974, arrived in Australia on 26 July 1997.  He was the holder of a visitor’s visa, issued on 17 July 1997 at New York in the United States.  On 20 October 1997, he lodged an application for a protection visa.  The application was lodged on the basis that he had a well-founded fear of persecution arising from the persecution of his father by guerrillas in Colombia which was also directed to the applicant and members of his family.  He obtained a bridging visa on 24 October 1997 to enable him to remain in Australia while his application was processed.  His application disclosed that his parents and a brother live in Colombia. 

4                     In a handwritten statement in answer to questions in the application form about his reasons for leaving Colombia the applicant referred generally to the history of violence,  corruption and guerrilla insurgency in that country and its impact upon him and his family.  He explained that his father, who was an electrical engineer, had worked for the Colombian government for more than 20 years.  He carried out public works contracts.  From time to time he had to go to rural localities to oversee the construction of hospitals.  At one stage members of a guerrilla group or groups told the applicant’s father that he shouldn’t work for the government.  However the work had to continue.  In mid 1995 guerrillas started asking his father to pay a special tax to support their war effort.  He was threatened with harassment and the kidnapping of a family member if he did not comply.

5                     The applicant himself was working at the International Airport as a translator at that time.  On one occasion in 1995 he was confronted at a bus stop near his place of work by two men who told him that his father had sent him a message.  They told the applicant that he and his family would have to support their war and pay their special tax.  He did not have with him the amount of money they were asking for.  They asked him to steal a walkie-talkie from the surveillance equipment at his place of work.  He did so, but in the end paid the company for what he had taken. 

6                     By the end of the first or second month of 1996, according to the applicant’s statement, he seemed to be just working for the guerrillas.  Everyday they asked for more money.  They threatened him by phone.  They left messages with his mother.  They started to visit him at his place of work or to wait for him on his way home.  It was impossible for him to keep up his studies. 

7                     Following his final exams in a computer studies course at University in Bogota four or five men got out of a car in a quiet part of the main street and assaulted him.  They told him that he had been sentenced to death, that he was worthless, that he should have paid more attention and that he had to do what he was told.  He was taken to hospital by a police officer.  The police officer told the applicant that he could provide security for him but he would have to pay for it. Ultimately, by arrangement with his father, the applicant left Colombia for New York in January 1997.  He didn’t ask for protection in the United States because of what he perceived as racism against Colombians.

8                     Asked in the application form whether he thought the Colombian authorities would protect him if he went back, he said they wouldn’t.  He said the security forces and the government were too weak to deal with the total ‘alarm and chaos’ in the country. He said Colombia was living on the edge of a civil war. 

The Delegate’s Decision Refusing a Protection Visa

9                     The application for a protection visa was considered and refused by a delegate of the Minister on 28 November 1997.  The delegate was prepared to find that the fact that the applicant’s father had refused to stop working in his job with the Health Department and that both he and the applicant had resisted co-operating with the guerrillas by joining them or paying their taxes, supported a conclusion that the guerrillas were persecuting the applicant because of his imputed political opinion.  The delegate said, however, that left wing guerrilla groups in Colombia were neither the legitimate government nor the illegitimate government in that country.  A legitimate government existed with functioning police and a judicial apparatus and the guerrillas were not linked with it either directly or indirectly.  The delegate said:

‘Given that the State is not implicated in the feared persecution, the applicant’s unwillingness to approach the authorities cannot be regarded as owing to fear of persecution.  Also there cannot be said to be a failure of State protection where the State has not been given an opportunity to assist.’

The delegate concluded that the State had not failed in its basic duty to protect the applicant and that he was able to avail himself of the State protection.

10                  The delegate also dealt with the issue of relocation.  He did not consider that there was any evidence to indicate that it would be unreasonable for the applicant to relocate in order to attempt to avoid the perceived risk. 

11                  By a letter dated 28 November 1997, the delegate advised the applicant of the outcome of his application.  He pointed out that the bridging visa which he held allowed him to remain in Australia lawfully for a period of 28 days measured from the date upon which he was taken to have received the letter of advice, namely seven days after its date.  He advised the applicant that he could apply to the Tribunal for review.  He would have to apply within 28 days.  The letter attached his ‘decision record’ which was, in effect, a statement of the delegate’s reasons for decision.  There was nowhere in the decision record a discrete list of documents referred to by the delegate in coming to his decision.  He did however refer in the body of the text, in Part B of the reasons, to the following documents containing relevant country information:

1.         United States Department Country Reports on Human Rights Practices 1996, Chapter on Colombia.

2.         A release by Associated Press on 24 April 1997.

These were the only such documents referred to in Part B of the delegate’s reasons for decision.

Application to the Tribunal and Correspondence from the Tribunal

12                  On 24 December 1997, the applicant lodged an application for review of the delegate’s decision with the Tribunal.  In the course of that application, in a handwritten statement of his reasons for bringing it, he said:

‘I disagree with the Department’s decision because the facts of reason on which they based their decision are a contradiction of the real situation.  My situation as I said before has sufficient gravity that not only the personal persecution stays no matter If my father and I are not persons who are legitimate power with the government or state; In Colombia it does not matter who you are; when it comes for Hostility; threats and killing.’ (sic)

13                  He referred to the guerrilla contacts with his father and then went on to say that the State of Colombia was powerless to act against private persecution.  He also said:

‘The information reports; that you have; about the general situation in Colombia seems to be very few.  there Is a situation on which the state is about to show a total breakdown; and it has been powerless for my private situation; my father has Informed about the guerrilla harrassments for him and my persecution to prevent them. and the authorities has not presented any good on the problem.’ (sic)  

14                  A Deputy Registrar of the Tribunal sent the applicant a letter dated 2 January 1998 acknowledging receipt of the application for review and informing him that the Tribunal had asked the department to send a copy of its documents about his case to the Tribunal.  The letter went on:

‘When we receive the Department’s documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately.  This is known as “review on the papers”. 

If the initial “review on the papers” does not result in a decision in your favour, you will be offered an opportunity to attend a hearing to give oral evidence to the Tribunal.  Some hearings are conducted by video or telephone conference.

Please note that you may send any documents or written evidence at any stage of the case.’

The letter also said:

‘You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your refugee status application.’

15                  In a further letter dated 7 August 1998, a Deputy Registrar again wrote to the applicant on behalf of the Tribunal stating, inter alia:

‘The Tribunal has looked at all the papers relating to your application but it is not prepared to make a favourable decision on this information alone.  You now have an opportunity to come to a hearing of the Tribunal to give oral evidence in support of your claims.’

The letter set out time limits for communication with the Tribunal. It went on to say:

‘You must send any new documents or written arguments to support your application to the Tribunal immediately.  If they are not in English they must be translated into English by an accredited interpreter or recognised translation authority.’

16                  A form called ‘Response to Hearing Offer’ was attached to the letter.  The applicant filled it out and said that he wanted to call a witness, a person called Mary who could give a verbal statement of what she heard and had been informed about his situation in the years since he had been in Colombia.

The Tribunal Hearing

17                  The Tribunal held a hearing on 31 August 1998.  The applicant was assisted by an interpreter but was otherwise unrepresented.  There was some discussion at the outset about evidence that might be given by the applicant’s witness, who was his cousin.  The applicant was asked whether his cousin had any personal experience of his experiences.  He said ‘No, just regarding the death of an aunt’.  Asked by the Tribunal member if she would be able to tell him anything more than the applicant could tell him, the applicant conceded that his cousin could not add anything.  The Tribunal member then said:

‘Her evidence will only be of value to you in this proceeding – and to me – if she were able to have some personal experience of what you went through in Colombia or, because she was there at the time, be able to provide actual eye witness of what happened to you.  Seeing as that is not the case, I don’t think I need to take evidence from her.’

The applicant said he understood and the hearing then proceeded.

18                  The applicant was sworn in and told the Tribunal member that when he first applied for a protection visa he had sent ‘papers’ to the Department.  He had thought these would automatically be transferred to the Tribunal.  He said to the member:

‘When I was aware that I would be having this interview and I made an inquiry regarding where the papers were at the RRT regarding my case I realised that those papers that were forwarded to DIMA were not here amongst the papers of the RRT, and those papers got very important information regarding my case.’ (sic)

The applicant identified only one of the ‘papers’ which he described as a report he had made to police in 1995.  He also referred to other papers he was awaiting which would help with his case.  Among them he was expecting letters from his father’s colleagues.  He asked for an adjournment of 7 to 15 days to give him time to get the papers from DIMA and also the further papers from witnesses in Colombia.  His request was refused by the Tribunal member who said that she would decide whether she needed to delay a decision in order to allow the applicant time to get the papers.  The applicant also evidently produced human rights reports from the United Nations and a report he made to the police relating to the assault he had suffered at the hands of four or five men when he was leaving the university in 1996.  When the Tribunal member asked to see the documents the applicant said that his cousin, who had been going to be his witness, had some of the reports but she had taken them with her.  These were the United Nations’ reports about human rights in Colombia.  The Tribunal member then said:

‘That’s all right, because the tribunal has a whole library of reference material on Colombia, and we’re quite aware of the violations of human rights and so on that happen there, so I don’t need any other evidence on that point.’

19                  In the course of the hearing the Tribunal member put to the applicant that the threats against him came principally because of his connection with his father.  The applicant agreed that that was correct.  The applicant explained to the Tribunal that his father worked for the Department of Health, on one of his jobs he went to a place called Mitu where there were hospitals to be erected.  This was an area once considered normal, with very little guerrilla activity.  That had changed and it was considered a red zone.  When his father was working there in 1995 the guerrillas were trying to take over the town and to spread their ideology among the people.  They tried to stop government activities in the town, even the hospital.  They wanted electricians to assist with their cocaine producing activity.  They proposed to the applicant’s father and another engineer that they should help out.  His father did not cooperate and was harassed by the guerrillas.  He was reluctant to attend a meeting which they requested he have with their commander.  Eventually he departed from Mitu where he had been working and went back to Bogota.  In mid 1996 his father returned to the Mitu area.  It was then considered a ‘red area’.  But according to the applicant it didn’t matter where his father went.  Wherever he went the guerrillas would find him because they knew his movements. 

20                  The Tribunal member asked why the guerrillas were so intent on finding his father.  The applicant said it was because his father had rejected the proposal and fled the area where he had been working. 

21                  The applicant said he had come to the attention of the guerrillas because he was his father’s son.  He referred to the demands for money which guerrillas made to him in Bogota.  He thought that he was the only person at the airport where he worked who had been the subject of these demands.  He said the guerrillas were trying to prove to his father that they were serious in their intent and that they would do something to his father or to a member of his family.  In December 1996, after the applicant had been assaulted by the group of four or five guerrillas near the university, his father was in Mitu.  He had gone back to Mitu to see if he could find a quiet place where they could live in peace.

22                  The applicant described the death of his aunt who lived in Villavicencio.  He said to the Tribunal:

‘She had a confrontation with the guerillas, which was a physical confrontation.  They were armed and they went to the farm where she was.  That’s after we had left.  This was two days after we left.  The guerillas went to my aunt’s place and she was so fed up with the situation we’ve been going through she had an argument with the guerillas and one of them shot her and killed her.  He shot her six times.’

23                  The Tribunal member referred to a letter which the applicant’s father had sent to the Department dated 12 December 1997.  In the course of the letter his father said:

‘In relation with the State protection, It is logical that I have asked for their assistance, since the very beginning of the hostility and threats towards my son and I.

 If it is said that Authorities and Judicial apparatus and Its system is able to protect us, then why the hostility for more than 2 years?

It does not matter the security sources, functioning Police and Judicial apparatus.  they are unable to stop the threaten of Kidnapping and death of my son.

no matter the methods of protection Its been reported and investigated but the hostility still remains.’ (sic)  

Further:

‘The situation and circumstances are worse than the ones exposed to the media and the Information that you receive from the US Department, It is different from the circumstances that we have to deal everyday.

As I claimed before We have tried in anyway or alternative of changing the way it is. but It has been more than 2 black years.

My family and I found ourselves obliged to look for my son’s protection and his escape.

My family and I, feel tranquillity.  this way I can do quietly my work. now days I am working on the (Mitu) Hospital in Vaupez Department this is limit border and jungle of our country.  Here the guerrilla commandant of the zone has ordered commerciants and contractors pay mercancy or financial contributions for the Revolutionary income I have not gone to any of these calls, and do not paying attention to their intimidations.’ (sic) 

According to the father’s letter he had been receiving blackmail threats and phone calls and that the guerrillas were after his son ‘not to kidnap him but to killing him’.

The Tribunal’s Decision

24                  In her findings and reasons for decision given on 9 September 1998, the Tribunal member accepted that the applicant’s father had been working on a project in a remote location and had been pressured by guerrillas to assist them.  She accepted that he had refused and had been made to pay money instead.  He had tried to keep his workers in the remote location from deserting the project.  The Tribunal member accepted that the guerrillas had been against the father for that reason.  She also accepted that the father had fled to Bogota to escape the guerrillas.  She was not satisfied that the rest of the applicant’s evidence was credible because of the many inconsistencies and illogicalities  it contained. 

25                  The Tribunal member gave the applicant the benefit of the doubt over his claims to have been a victim of extortion while he worked in Bogota.  On the applicant’s evidence the guerrillas wanted money and when he told them that he had little cash to give them, they demanded that he steal for them.  There was nothing to show that the extortionists were unhappy with a status quo in which the applicant regularly gave them sums of money.  This was regardless of their political background or his.   The Tribunal member did not accept the applicant’s claim that the extortionists were pursuing him because of his connection with his father.  They knew where his father had been all the time.  If they had wanted to harm the father they could have done so directly.  The Tribunal member concluded that this pointed to ordinary extortion as the cause of the demands for money made on the applicant as an individual. The Tribunal member found it implausible that the guerrillas would take the trouble to trace all around the country an ordinary professional who had fled their attempts at extortion and the threats they had made against him over a project. 

26                  The Tribunal member referred to inconsistencies in the applicant’s evidence about the course in computer studies which he attended in Bogota in 1996 and later evidence he gave of moving from town to town around the country during the same time period.  His explanation that he could attend courses while travelling around was implausible and his other  explanation that ‘work and study do not matter when lives were in danger’ did not address the inconsistency. 

27                  The Tribunal member did not accept the applicant’s claim that his father had considered the Mitu location as a place to which he could retire safe from guerrilla harm.  This was characterised as ludicrous. 

28                  The inconsistency between the applicant’s claim that his father had never gone back to Mitu after 1996 and evidence in the father’s letter that the father had been working at the same location in 1997 detracted greatly from the applicant’s credibility.  The Tribunal member observed, at the hearing, that the applicant was uneasy with the inconsistency.  The Tribunal member said:

‘His first explanation, that the father had been in Bogota working on the project, not in the remote location itself, is contradicted by the father’s own statements which indicate by their phrasing that he was in the remote location, not Bogota.’

The Tribunal member then said she had considered whether the applicant might fear persecution by reason of membership of a particular social group.  While she accepted that a family could be considered a particular group under the Convention, she went on to say:

‘However, given the evidence in the applicant’s father’s letter that “the family and I are living in tranquillity”, I find little reason to consider that the family is being persecuted.  Given this, I find that there is no basis [to] consider the applicant to be at risk of persecution on account of membership of a familial particular social group.’  

29                  As to the claim that the applicant’s aunt had been killed by guerrillas, the Tribunal member regarded this as open to doubt given the lack of credibility in the rest of the applicant’s evidence.  Even had she been killed, it was implausible that it would have been because of her relationship to the applicant’s father.  The Tribunal member concluded:

‘In sum, I find that the applicant’s evidence is riddled with inconsistencies and implausibilities which significantly diminish the credibility of much of his evidence.  For this reason, and the fact that those claims which I do accept relate to extortion that is not motivated by a Convention reason, I am not satisfied that the applicant has a well-founded fear of persecution under the Convention.’

The Tribunal member affirmed the refusal of a protection visa to the applicant.

The Application for Judicial Review

30                  On 8 October 1998, the applicant filed an application for an order of review of the Tribunal’s decision in the Federal Court, New South Wales District Registry.  That application came on for hearing before Einfeld J who dismissed it in an ex tempore decision delivered on 27 January 1999. 

Proceedings in the High Court

31                  In March and June 1999, a Mr Muin and Ms Nancy Lie, both Indonesians of Chinese ethnicity, commenced proceedings in the High Court in respect of the affirmation by the Tribunal of decisions of delegates of the Minister for Immigration and Multicultural Affairs refusing to grant them protection visas.  They sought relief under s 75(v) of the Constitution.  Both actions were brought as representative proceedings.  Numerous plaintiffs were joined to each of these actions between 1999 and 2001.  The applicant was among those who joined the schedule of represented parties in the Lie action.

32                  Gaudron J reserved certain questions on 3 November 2000 for consideration by the Full Court of the High Court under s 18 of the Judiciary Act 1903 (Cth).  The questions which related only to the individual cases of Mr Muin and Ms Lie concerned alleged failures to accord procedural fairness.  In its judgment, which was delivered on 8 August 2002 in Muin v Refugee Review Tribunal (2002) 190 ALR 601, the High Court held that in the case of both Mr Muin and Ms Lie there had been a failure to accord procedural fairness in connection with the review of the delegates’ decisions by the Tribunal.  That failure arose, in part, out of the failure to transmit to the Tribunal the Part B documents relied upon by the delegates in coming to their decisions.

33                  On 25 November 2002, Gaudron J made an order granting leave to any person named in the schedule to the statement of claim in the proceedings to file an application seeking an order nisi in relation to the decision of the Tribunal concerning that individual on or before 1 June 2003.  Applications so filed were to be remitted ‘instanter’ upon filing to the Federal Court of Australia pursuant to s 44 of the Judiciary Act.  Similar orders were made in the Muin proceedings.  The time for making applications for orders nisi was extended from 1 June 2003 to 20 June 2003 by McHugh J.  A draft order nisi with a supporting affidavit was filed in the original jurisdiction of the High Court by the applicant on 30 May 2003.  That matter was then remitted to this Court.  There was subsequently a question whether or not it was out of time and I determined that question in favour of the present applicant and other applicants on 21 April 2004 – P33 of 2003 v Refugee Review Tribunal [2004] FCA 474.

The Grounds Relied Upon for the Issue of Prerogative Writs

34                  On 21 October 2003, the applicant filed a statement of contentions of facts and law with particulars of the grounds relied upon and the orders sought.  In those contentions the applicant asserted that notwithstanding the letter of 7 August 1998 from the Deputy Registrar of the Tribunal to the applicant, the Tribunal did not consider the documents mentioned in Part B of the delegate’s decision. 

35                  The specific grounds particularised in the applicant’s statement of contentions were as follows:

‘1.        The [Tribunal] failed to accord the Applicant procedural fairness in relation to favourable country information.

            1.1       The [Tribunal] misled the Applicant that all the evidence before the [Department] would be considered.

            1.2       The Applicant relied on the representation by the [Tribunal] that all the evidence would be considered.

            1.3       The [Tribunal] failed to consider information provided in Part B of the [Department’s] decision.

            1.4       Had the Applicant been aware that the [Tribunal] had failed to take that information into consideration, the Applicant would have brought that information to the [Tribunal’s] attention.

2.         The [Tribunal] failed to accord the Applicant procedural fairness in relation to adverse country information.

            2.1       The [Tribunal] took into account adverse country information of which the Applicant had not been informed.

            2.2       The [Tribunal] failed to give the Applicant an opportunity to reply to this adverse country information.

            2.3       Had the Applicant been aware that the [Tribunal] was taking that information into consideration, the Applicant would have provided further favourable country information for the [Tribunal] to consider.

3.         The [Tribunal] failed to accord the Applicant procedural fairness in relation to the Applicant’s Father’s letter.

            3.1       The [Tribunal] failed to inform the Applicant of the negative inference being drawn from the Applicant’s Father’s letter.

            3.2       The Applicant was denied the opportunity to appropriately respond to the negative inference being drawn.

            3.3       Had the Applicant been provided the opportunity, he would have produced further evidence to respond to the [Tribunal’s] inference.

4.         The [Tribunal] committed Jurisdictional Error.

            4.1       The [Tribunal] failed to accord the Applicant procedural fairness in relation to favourable country information.

            4.2       The [Tribunal] failed to accord the Applicant procedural fairness in relation to adverse country information.

            4.3       The [Tribunal] failed to accord the Applicant procedural fairness in relation to the Applicant’s Father’s letter.

5.         There was a failure on the part of the [Tribunal] and [the Department] to carry out their obligations in accordance with the law.

            5.1       The [Department] failed to comply with the requirement in section 418(2)(b) of the Migration Act  1958 to refer to all the evidence on which its decision was made.

            5.2       The [Department] failed to comply with the requirement in section 418(3) of the Migration Act 1958 to give to the [Tribunal] “each other document, or part of a document, that is in the [Tribunal’s] possession or control and is considered by the Secretary to be relevant to the review of the decision”.

            5.3       The [Tribunal] failed complywith the requirement provided in section 424(1) of the Migration Act 1958 to “consider the material contained in the documents” before considering whether it would have been prepared to make a favourable decision.’ (sic)

The Evidence

36                  The evidence comprised an agreed statement of facts and a chronology (Exhibit 1) and a number of affidavits.  These were as follows:

1.         Affidavit of the applicant’s pro bono counsel, Mr DPA Moen, sworn 14 July 2004, exhibiting a copy of the chapter on Colombia in the United States Department of State Country Report on Human Rights 1996 and an Associated Press compilation of reports relating to Guerrilla Movements in Latin America dated 24 April 1997.  These were the documents referred to in Part B of the delegate’s reasons for decision refusing the grant of a protection visa.

2.         Affidavits of the applicant dated 24 October 2003 and 6 February 2004.

3.         Affidavits of Teresa Chew Ping Ling, a solicitor employed by the Australian Government Solicitor sworn 7 January 2004 exhibiting relevant materials including the Tribunal’s reasons for decision and 6 July 2004 exhibiting the transcript of proceedings before the Tribunal.

4.         Affidavits of Janine Gwenda Murfet, an officer of the Department of Immigration and Multicultural and Indigenous Affairs sworn 1 June 2004 and 11 June 2004.

Ms Murfet holds the position of Director, Protection Decision Support Section and has held that position since 1 September 2003.  One of the functions of the Section which she manages is the country information service and related information management functions.  Its primary purpose is the provision of country of origin information to case managers.  Ms Murfet said she is familiar with computer databases maintained by the Department in Canberra for the storage of its country information, international media articles and other source material and documents relevant to the Department’s functions and those of the Tribunal.  These include the CISNET database.

37                  Ms Murfet said that at all material times members of the Tribunal and their administration staff have access to CISNET.  They can manually access the database by going to their own desktop computers or a computer terminal in the Tribunal offices and downloading the required information to their computer screen and viewing it on the screen.  She deposed that the US State Department Country Reports on Human Rights Practices for 1993 to 1996 were currently available on CISNET. 

Ground 1 – Want of Procedural Fairness by Failure to Consider Part B Documents Favourable to the Applicant’s Case

38                  Counsel for the applicant informed the Court at the beginning of the hearing that the second and third respondents admitted that the Tribunal member did not receive, in hard copy form, either the US State Department Country Reports on Human Rights Practices 1996 or the Associated Press document referred to in Part B of the delegate’s reasons for decision.  There was no dissent by counsel for the second and third respondents and I accept that the admission was made and was evidence of the fact.  Counsel for the applicant for his part conceded, in the course of argument, that the applicant had never seen the documents referred to.

39                  There was no reference to the Part B documents in the Tribunal’s reasons for decision.  Ms Murfet’s affidavits do not appear to establish that at the time of its decision in this case, the Tribunal had access through CISNET to the US State Department Country Report 1996 or to the Associated Press report.  I am, however, prepared to infer from the reference to that material in the delegate’s decision that it was available, at least through a departmental library, and thereby available to the Tribunal to consider if it wanted to.

40                  Counsel for the applicant referred to various passages in the Part B documents said to be favourable to the applicant.  The Associated Press report referred to a guerrilla group known as the Revolutionary Armed Forces of Colombia (FARC) which was believed to have 15,000 fighters and to control large areas of the countryside as at April 1997.  The Report referred to guerrilla activities which included kidnapping, extortion and the imposition of ‘taxes’ on cocaine production. 

41                  The Court was referred to passages in the United States Department of State Report 1996, describing the extent of guerrilla activity in Colombia and the involvement of guerrillas in kidnappings and killings.  The extensive use of kidnapping to extort ransom payments was reported.  The Report also referred to civilian deaths at the hands of the guerrillas and the struggle for the control of narcotics and arms trafficking.  It said:

‘To justify summary executions of civilians, guerrillas typically charged that their victims were either informants for the army or related in some other way to the State, or that they simply refused to support the guerrillas’ operations.’

Plainly there are aspects of these reports that would have supported the proposition that guerrillas did engage in activities of the kind recounted by the applicant.  None of them however was specific to the applicant. 

42                  The applicant said in his affidavit sworn 24 October 2003 that, as a result of the Tribunal’s letter of 7 August 1998, he assumed that the Tribunal had considered all documents on his file.  He made no specific reference to the country information mentioned in Part B of the delegate’s decision.  Nor was there evidence of what he would have done had he known that the Part B documents were not sent to the Tribunal.

43                  There is no evidence that the Tribunal did not have regard to the documents mentioned in Part B or information of a similar character from other sources.  Given that the applicant was not even aware of the content of the Part B documents, and in the absence of any evidence that the Tribunal’s letter affected his actions in any way  I am not satisfied that any practical unfairness has been demonstrated. 

44                  Importantly, the Tribunal’s decision turned upon its rejection of the applicant’s claims because of their inherent implausibility and illogicality.  I accept, as submitted by the second and third respondents, that the primary reasons of the Tribunal for rejecting the applicant’s claims were that:

(a)        A large portion of the applicant’s evidence was not credible because of its inconsistencies and illogicalities.

(b)        The applicant was subject to extortionists in Bogota but their motive was simple opportunism and greed.  They did not pursue the applicant as a way of harming his father.

(c)        The applicant’s family was not currently facing persecution because a letter from the applicant’s father said that he and his family were living in tranquillity.  Accordingly the applicant was not at risk of persecution on account of membership of a familial particular social group.

45                  As was submitted for the respondents, the evidence does not establish that there was anything in the Part B documents favourable to the applicant which the Tribunal did not take into account and which could have affected its reasoning on the credibility issues and factual findings which determined the outcome in this case.

46                  The factual position in the Muin and Lie differed from that which emerges from the evidence in this case.  Mr Muin believed the Tribunal had received the documents from the Department set out in Part B of the decision of the delegate and had been misled into believing that it was unnecessary for him to draw the favourable information in those documents to the attention of the Tribunal.  It was agreed that if he had not been so misled and had known that the Part B documents had not been received and considered by the Tribunal he would have taken certain steps to correct the situation including the making of submissions to the Tribunal going to the content of those documents and tendering additional evidence in support of his position.

47                  In my opinion, the first ground relating to alleged procedural unfairness by reason of the Tribunal’s failure to take into account favourable country information is not made out.

Ground 2 – Procedural Fairness – Adverse Country Information

48                  There was no reference to any adverse country information in the Tribunal’s reasons for decision.  There was no evidence that any such information was taken into account.  The applicant’s submissions did not point to any such information.  There is nothing to support this ground.

Ground 3 – Procedural Fairness and the Father’s Letter

49                  The substance of this ground, as explained in the applicant’s statement of contentions, turned upon the Tribunal’s observation in its reasons for decision that, given the evidence in the father’s letter that “the family and I are living in tranquillity”,  there was little reason to consider that the family was being persecuted and no basis to consider the applicant  at risk of persecution on account of membership of a familial particular social group.   In oral argument counsel for the applicant contested the Tribunal’s interpretation of the father’s letter and its reference to ‘living in tranquillity’.  Counsel submitted that the Tribunal member had an obligation to draw to the attention of the applicant that part of the letter which it was going to rely upon for the purposes of assessing his credibility.  The Tribunal, it was submitted, ought to have invited the applicant to comment or otherwise to provide further information on that aspect of the letter.  In my opinion, however, there is no procedural unfairness.  The letter was part of the evidence presented to the Tribunal by the applicant.  It was open to the applicant to make such arguments as he wished in respect of the letter.  The Tribunal’s particular construction of the letter was not a matter which it was obliged to put to the applicant, although it would have been open to it to do so.  In my opinion, ground 3 fails.

Ground 4 – Jurisdictional Error

50                  This ground simply collates the first three grounds and labels them, presumably collectively and severally, as incidents of jurisdictional error.  For the reasons already outlined, none of them establishes jurisdictional error.

Ground 5 – Failure to Comply with the Requirements of Section 418 and 424 of the Migration Act

51                  This ground relies upon the failure of the Secretary of the Department to comply with the requirements of s 418 by reason of his failure to transmit the Part B documents to the Tribunal.  However I accept the submission made for the respondents that if there were such a failure it was not a failure which vitiated the exercise of the Tribunal’s powers.  In particular I refer to the judgment of Sackville J in Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 at [32] where his Honour said:

‘In any event, even if the Secretary had failed to comply with s 418 (3) of the Migration Act, this would not establish that the RRT’s decision was without legal effect.  This is because the Secretary’s compliance with s 418(3) of the Migration Act was not a precondition to the exercise of the RRT’s review functions and there was no obligation on the RRT to consider the documents described in s 418(3) as part of the review process...’

The Full Court in that case dismissed an appeal against the judgment of Sackville J – S48 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125.

Conclusion

52                  For the preceding reasons none of the grounds of the application succeed and the application will be dismissed with costs.  I would like to express the thanks of the Court to Mr Moen, who acted in a pro bono capacity, for his careful and thoroughly prepared submissions.

Associate:

Dated:              18 August 2004